"The concept of time-shift has now become common, and although the phrase sounds like something new, any tape recording of a speech, or musical performance, or news event, or any film, including your home movies, represents time-shift. I have been dealing with time-shift all my life, from the time my mother and I listened to those old classical records, to when Norio Ohga said he needed a vocal mirror."
Akio Morita, Sony founder, from his autobiography Made in Japan
On January 17, 1984, the Supreme Court handed down a verdict in the case of Sony Corporation of America v. Universal Studios Inc. and Walt Disney Productions, commonly referred to as the "Betamax case." The case at hand, which stemmed from a lawsuit filed in a California District Court back in November 1976, revolved primarily around the issue of time shifting, the practice of recording television programs to be watched at a later time, specifically whether this practice was illegal and, if so, whether Sony was liable for the time shifting activities of its users. The court's decision, by a vote of 5-4, that time shifting was "a noncommercial, nonprofit activity" that "has no demonstrable effect upon the potential market for, or the value of, the copyrighted work," opened the door not only for the continued viability of the VCR (Video Cassette Recorder, earlier referred to as VTR, or Video Tape Recorder), but for what might be termed a "time-shifting culture," in which DVDs, DVRs, and the Internet allow anyone to watch almost anything at any time, no longer beholden to TV schedules. And yet, many of the existing analyses of the Betamax case analyze it strictly in legal terms, ignoring the technological factors that played a critical role. Perhaps, then, by examining the Betamax case in the context of the history of time shifting, a more comprehensive view of this landmark case can be achieved.
While the phrase "time shifting" was coined by Sony chairman Akio Morita specifically to refer to the Betamax, the practice of time shifting had been a reality for over a decade prior to the release of the first Betamax decks in the US in late 1975. In 1965, Sony, the Japanese electronics corporation that would later release the Betamax, introduced a new video player, the CV-2000, also known as the Videocorder. Videotape had been in existence since the 1956 invention of 2" Quadruplex, released by Ampex, but it had always been intended and priced for the professional markets, generally TV broadcasters.1 With CV, which stood for "Consumer Video," Sony was attempting to create the first home video format that would be small and affordable enough for regular consumers, at least those with $695 (the initial cost of a CV deck) to spare. CV was a ½" open-reel video format that recorded a black-and-white picture, with up to 200 lines of resolution. Unlike with the Betamax, as will be discussed later, Sony released a CV camera at the same time as the deck, allowing users to make their own movies. However, the advertising certainly highlighted the potential time shifting use; one print ad from 1965 mentions that using the CV-2000 "you can tape selected TV programs off the air," and notes that it comes with a "built-in timer to automatically tape TV programs while you're away." Even at that time, it seems that Sony's lawyers were concerned about the possibility of getting sued, as the fine print at the bottom of the ad includes the line, "The Videocorder is not to be used to record copyrighted material." (Labguy's World)
While CV was intended by Sony to be a consumer product, it was ultimately a failure in that realm, selling only 26,000 decks, only a small minority of which ended up in homes, due both to the fairly high cost and the fact that, as an open reel video player, it was too complicated for ordinary consumers. (Schmedel) CV did enjoy some success as a professional video format until it was replaced in 1969 by the EIAJ Standard ½" color video format (released by Sony as "AV"). This pattern would be repeated again in 1971 with Sony's release of the first viable cassette format, ¾" U-matic. As with CV, Sony attempted to push U-matic in the consumer market, but again encountered resistance due to the cost and size of both the deck and the black tapes. U-matic did become a success in the professional realm, particularly in the field of electronic news gathering. (Lardner, Fast Forward 73)
Interestingly, while it does not appear that any studios considered suing Sony over CV, AV or U-matic, the issue of whether or not Sony had previously sold time-shifting-capable VTRs (and Universal's knowledge thereof) came up several times during the Betamax case. During the initial District Court case, Sony's lawyers presented evidence that Lew Wasserman, the Universal chairman and former president, had been sent an invitation to a CV demonstration in 1965. To quote the invitation, the CV "can record television programs for immediate playback or later viewing. You can imagine how easy it will be to build a home library of outstanding television programs." Apparently a Disney official attended a similar event and sent a report to Walt Disney saying, "I saw a demonstration and was very much impressed." (Lardner, "Annals I" 56) An amicus curiae brief filed on August 28, 1982 by a number of advertising agencies in support of Sony quotes from a House Judiciary Committee meeting to illustrate that Congress and the Motion Picture Association of America (MPAA, though confusingly referred to in the brief as "MMPA") were aware in 1965, of the existence of the Videocorder. The brief then points out that, "the legislative history shows that, despite the knowledge that home videotape recorders were now available to the public, the motion picture industry, the Register and Congress accepted (1) that private home performance of copyrighted works, whether audio or visual, would not be infringement, and (2) that the home tape recording that preceded such a performance, whether audio or visual, would be fair use…." (5) This view was challenged in an October 27 brief filed by Universal and Disney, which claims that, "petitioners err in stating that VTRs have been sold for home recording continuously since 1965. Indeed, Sony's officers admitted that prior to introducing Betamax in late 1975, all attempts to sell home use VTRs failed." (14)
Sony's lawyers then fired back in a December 3 brief, which contains a short history of VTR releases:
"Respondents unconscionably dispute the fact that VTRs have been on sale and sold for free off-the-air TV home recording continuously since the middle 1960's. The home VTR (black and white 'CV' series) was first made available in the United States in 1965. It was heralded to the public in general and was demonstrated to respondents and to the entertainment industry in particular. The first color home VTR ('AV' series) was made available in the United States in 1969-70, also with national media fanfare, and is still being sold. The first cassette home VTR ('U-matic' series) was made available in the United States in 1972." (5)
Sony's argument here is that because Universal knew about the existence of time-shift-capable home VTR technology since 1965 and did nothing about it, they were implicitly admitting that these products were not infringing their copyrights. To quote further from the Dec. 3 brief,
"Since the whole idea of VTR is time-shift viewing, and since it is obvious that some sort of interim "record" or "copy" of the broadcast therefore must exist to provide the playback viewing, the copyright issue raised by the home VTR was self-evident at the outset. However, as the years went by, concerns over the copyright issue as regard home VTR reception were made to appear groundless. First, following the advent and publicizing of the home VTR in 1965, and until late 1976, neither respondents, their amici nor anyone else raised any copyright infringement objection. To the contrary, for example, Universal's executive Adams wrote Sony's president in 1969 that the home VTR was 'an exciting breakthrough for both the motion picture industry and television industry. May I wish you success.'" (5)
While these quotes establish that Universal was certainly aware of earlier time shifting technology, Sony's lawyers were perhaps being a bit disingenuous in lumping together the Betamax with their earlier VTRs. The Betamax was first released in the US in late 1975, first as the SL-6200 model, which came attached to a Trinitron television set and retailed for $2295, and then in February 1976 as the SL-7200, the first stand-alone deck which sold for $1295. (BetaInfoGuide) Smaller and cheaper than U-matic, the Betamax was an instant success in the consumer realm, selling 30,000 decks in 1975 and another 55,000 in 1976. (Klopfenstein 25) While earlier video products featured, as Betamax did, a timer that allowed users to set their VTR to record programs at a later time, the Betamax also had a built-in TV tuner, allowing users to record a program at the same time that they were watching a different program. Perhaps the biggest difference between the Betamax and Sony's earlier VTRs is that, while products like CV or U-matic featured time shifting as one of several possible functions, the Betamax was designed specifically as a time shifting machine. When Betamax was introduced, the only products that users could buy, apart from the decks themselves, were blank tapes. Pre-recorded Betamax tapes were not made available until the late 1970s and Sony did not release a Betamax camera until 1983, thus limiting users' actions solely to recording programs off television.
The Betamax marketing strategy also highlighted the time shifting potential. In Morita's autobiography, he discusses this approach. "When… I introduced Betamax to the market in 1975, we established our marketing policy to promote the new concept of time-shift…. I gave speeches telling people Betamax was really something new. 'Now you can grab a TV program in your hand,' I said. 'With the VCR, television is like a magazine – you can control your own schedule.' This is the concept I wanted to sell." (209) The early Betamax commercials highlighted the benefits of time shifting for people who worked nights (cab drivers, Dracula) and would no longer have to miss their favorite programming. Of course, the Sony lawyers, ever vigilant, posted a warning in the Betamax manual under the section on recording TV programs that read: "Caution: Television programs, films, video tapes and other materials may be copyrighted. Unauthorized recording of such material may be contrary to the provisions of United States copyright laws." Yet the Betamax marketing was not so cautious. One 1976 print ad featured the text, "Now you don't have to miss 'Kojak' because you're watching 'Columbo' (or vice versa)." (Lardner, "Annals I" 45) When this ad landed on the desk of Sidney Sheinberg, the president of Universal Pictures, which produced both "Kojak" and "Columbo," he became concerned about the potential copyright violations and contacted Universal's lawyers, leading directly to the filing of the lawsuit. (Lardner, "Annals I" 45)
In late 1976, when Columbia began formulating plans to sue Sony for copyright infringement, US copyright law was on the brink of a major transition from the status quo established by the Copyright Act of 1909 to the new paradigm established by the Copyright Act of 1976, which had been passed by Congress that October, but would not take effect until January 1, 1978. The new Copyright Act was designed, in part, to bring copyright law in line with technological developments that had arisen over the previous decades, yet it contained no mention of time shifting. Indeed, under the letter of the law, time shifting, as an unauthorized reproduction of a copyrighted work, is a clear infringement. The Copyright Act also codified the concept of "fair use" as a defense against infringement, though Universal's lawyers were convinced that Betamax time shifting failed all four fair use tests: the purpose of the use, the nature of the work, the amount and substantiality of the portion used, and the effect of the use on the market for the work. Interestingly, while there is no evidence that Congress considered video time shifting when it was drafting the new copyright act, it seems that there was discussion of home audio recording, which they seemed generally unconcerned about. During debates in the House, Representative Abraham Kazen, Jr. asked if he was "correct in assuming that the bill protects copyrighted material that is duplicated for commercial purposes only," to which the copyright subcommittee chair Robert Kastenmeier responded, "Yes." (Lardner, "Annals I" 54)
It is worth mentioning here that Universal's concerns regarding Betamax may not have been limited strictly to the realm of copyright infringement. During the early-to-mid 1970s, MCA, the parent company of Universal, had released their DiscoVision system, a disc-based video player. Unlike the Betamax and other VTRs, DiscoVision would only allow playback – the discs would not be writable – with the idea being for MCA/Universal to begin selling their films on DiscoVision. Several people who were involved with the Betamax case on Sony's side would later claim that Universal saw Betamax as a competing product to DiscoVision and, as such, attempted to shut it down. To quote Harvey Schein, the president of the Sony Corporation of America (Sonam), "I don't think it was accidental that the company that took the lead in fighting the videocassette was the company that had all the patents on the videodisc." (Lardner, Fast Forward 36)
Once the case began in 1979, Universal's lawyers attempted to shift the focus from users who were simply time shifting to those who were "librarying," assembling libraries of recorded content, both television shows and movies. For these devoted users, or videophiles as they would dub themselves, Betamax was the gateway to a new world of fandom, of video sharing and librarying, taping parties and video conventions. In 1976, after buying his first Betamax deck, a small-time 16mm collector named Jim Lowe placed an ad in Movie Collector’s World asking if there were any readers who would be interesting in trading Betamax movie and television tapes. When he received a few responses in the affirmative, he decided to publish The Videophile’s Newsletter, the first issue of which came out in September of that year. (Greenberg 23) In publishing the Newsletter, Lowe was consciously attempting to create a community, submitting his own "Want List," of TV show episodes and movies that he was looking for, and inviting readers to submit their own lists.
As the videophile and tape trading community grew, public meet-ups became more common. Videophiles met at taping parties or electronics conventions, where they would daisy-chain as many as a dozen Betamax decks together to make multiple copies of a single recording. Since HBO subscription required a satellite dish at the time, a rare commodity in homes, some videophiles, notably Marc Wielage, who would be subpoenaed in the Betamax case, would check into hotel rooms with their Betamax deck if there was something worth taping, then share the tapes around. The atmosphere was collegial and cooperative – while everyone wanted to get the prestige of having recorded something that no one else had, they tended to be just as happy to share their wealth, so to speak, with the community. Of course, as often happens with niche communities, the videophiles were presented by Universal's lawyers as being representative of all Betamax users, even though The Videophile’s Newsletter never had more than 8,000 subscribers. (Greenberg 37) In fact, Universal conducted a poll which showed that the average Betamax household owned 31.5 cassettes, 18.99 of which were being kept in a library, and that 43% of Betamax decks were being used as much or more for librarying than for time-shifting. Sony countered with a poll of their own, showing that while 96% of Betamax users were involved in time shifting, 70% of the recordings were viewed only once. (Lardner, "Annals I" 56)
Indeed, Universal's main strategy during the trial was to focus on the librarying practices of Betamax users, perhaps sensing that an argument based on time shifting alone would not be enough to win. Jack Valenti, the president of the MPAA, drew upon the above statistics during his testimony, claiming that "people are buying large numbers of videocassettes; ergo, they are not just using them to record and erase." (Lardner, "Annals I" 61) Yet when questioned, Universal and Disney's representatives were unable to point to any specific financial losses they had suffered as a result of Betamax. Universal sought to make up for this by bringing in representatives of the advertising industry to testify that Betamax had damaged their business, by allowing user to fast forward through commercials, but the judge ruled that "any detriment that the Betamax would have upon the advertising industry, any detriment that the Betamax may have upon other manufacturers of products who wish to advertise on television is immaterial in this litigation." (Lardner, "Annals I" 62)
Sony's main strategy during the trial was to introduce content providers who would testify that they did not have a problem with their work being time shifted. Among those who testified on Sony's behalf were all four major sports leagues, the NCAA, the National Religious Broadcasters and Mr. Rogers. (Lardner, "Annals I" 62) Sony's lawyers believed, rightly so it turned out, that if they could prove that the Betamax had non-infringing uses in addition to the infringing uses that Universal had proved, then they were off the hook. To quote Dean Dunlavey, Sony's chief lawyer, drawing on patent law, "There has never been a case in history where the manufacturer of a machine with a legitimate use was ever punished for some improper use made of the machine by a purchaser." (Lardner, "Annals I" 63) The judge agreed, writing in his October 1979 decision, "Home-use recording from free television is not a copyright infringement, and even if it were, the corporate defendants are not liable and an injunction is not appropriate." Fair use applied because the taping was done by people in the privacy of their homes and because Universal and Disney had voluntarily transmitted their works over the public airwaves. (Lardner, "Annals I" 64)
Hanging over the District Court proceedings was the fact that, no matter the outcome, the case would surely be appealed, perhaps all the way to the Supreme Court. Indeed it was appealed, and in October 1981, the Appeals Court of the Ninth Circuit issued its ruling in favor of Universal, reversing the earlier District Court. For the Ninth Circuit, the original judge had stretched fair use further than it was meant to go by claiming that it applied to home videotaping. The three-judge panel also ruled that Universal and Disney did not need to show proof of losses directly related to Betamax, only that video recording "was likely to affect the market for [their] products," which according to the Court, "seem[ed] clear." Furthermore, in responding to Mr. Rogers, et al., the court wrote that "virtually all television programming is copyrighted material…. That some copyright owners choose, for one reason or another, not to enforce their rights does not preclude those who legitimately choose to do so from protecting theirs." (Lardner, "Annals I" 69)
The period between the Ninth Circuit's verdict and the commencement of the Supreme Court case in January 1983 was a time of great insecurity for all those involved in the VCR business, which by that time had greatly expanded to include a variety of companies selling VHS, Betamax's chief rival, which had been released in 1976 by Matsushita and which had already begun to push Betamax out of the market. This rivalry, however, paled before the fact that the court's ruling could put them all out of business. The Ninth Circuit, anticipating the Supreme Court's hearing of the case, did not order Betamax products to be withdrawn from the market, but there remained a very real possibility that all VCRs, and potentially other copying technologies such as audio tape recorders or even Xerox, could be found to be illegal. Congress held a series of hearings in 1982 to investigate the issues raised by the Betamax verdict and perhaps come up with a legislative solution that would allow VCRs to remain legal. Indeed, by 1982, all the major Hollywood studios had entered the pre-recorded tape business and thus had an interest in keeping VCRs in business, if only on their terms.
While some in Congress favored legislation that would simply create a copyright exemption for home taping, lobbyists from the MPAA were pushing hard for the creation of a royalty system that would add an extra fee onto the purchase of any VCR or blank tape, as well as for the removal of the first sale doctrine as it applied to videotapes. Jack Valenti was heavily involved in these hearings, spending much of his time before Congress spewing invective against the VCR manufacturers – it was during these hearings that he hyperbolically claimed that "the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone." (US House) At times, Valenti tried to frame the debate as a struggle between the Japanese, represented by Sony and the other VCR manufacturers, and the Americans, represented by Hollywood: "Japanese machines do not create entertainment. The American motion picture industry does." (Lardner, "Video Wars" 2) Valenti also brought in movie and TV stars, notably Charlton Heston and Beverly Sills, to speak to the great amount of work that went into the creation of Hollywood productions, with the hope that these sorts of intangible elements would prove more persuasive to Congress than they had to the District Court (when Donn Tatum, the chairman of Disney, testified that filmmaking required a great deal of talent, the judge replied, "Well, it takes just as much talent to get your shoes shined.") (Lardner, "Annals I" 60) Covering the Constitutional angle, the studios also presented a treatise from Harvard law professor Laurence Tribe, claiming that time shifting violated the Fifth Amendment, by taking the studios' property without compensation, and the First Amendment, "because motion-picture and television producers will speak less often if the reward for their efforts is greatly reduced." (Lardner, "Annals II" 65) In response, the other side of the argument, represented by the newly-assembled Home Recording Rights Coalition, suggested that limiting or monitoring home users' VCR usage would be infringing on their Fourth Amendment rights. Ultimately, however, discussions were tabled when the Supreme Court granted certiorari in the Betamax case on June 14, 1982.
While the ultimate verdict in the Betamax case, as mentioned above, is well-known, the deliberations that resulted in the overturning of the Ninth Circuit are somewhat less explored and quite fascinating, particularly in revealing the Justices' views on the technology and the issues at hand. For John Paul Stevens, who would write the majority decision, the primary matter, at least at first, was home taping, specifically whether or not it could be considered a fair use. In examining this, Stevens turned to the Congressional record regarding the creation of the Copyright Act of 1976, specifically the aforementioned discussion of audio taping, to determine that home taping was not meant to be infringement under the law. On the other side of the debate, Harry Blackmun, who would eventually pen the dissenting opinion2, believed that home taping could not be a fair use because it was an unproductive use and that, regarding potential harm done to the studios, the burden should be placed on Sony to prove that their product had no effect on the studios' market. Furthermore, in his view, if home taping was found to be infringing, then Sony would be liable for "contributory infringement." (Bond 434-35)
Ultimately Stevens' position won out, largely by incorporating the concerns of Justices William Brennan, Byron White and Sandra Day O'Connor to bring them on board with his opinion. For Brennan and White, it was crucial to draw a distinction between time shifting and librarying. Thus, rather than endorse a verdict which might consider both equally non-infringing, each proposed compromises under which only time shifting would be considered non-infringing, still ensuring that Sony would not be a contributory infringer. O'Connor was initially considering signing on with Blackmun, but was concerned about limiting fair use merely to productive uses, even when no harm had been proved, and was further interested, as with Brennan and White, in limiting the scope of contributory infringement to cases where there was no substantial noninfringing use. (Bond 450) Thus, rather than taking Stevens' original, much broader position, the Court could remain neutral on librarying and commercial taping and still rule in favor of Sony. In his final majority decision, Stevens wrote that "One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible."
In the aftermath of the Betamax decision, the MPAA continued to try to push legislation through Congress, focusing their efforts on undoing the first sale doctrine as it applied to videotapes. After the bill died in committee, however, Congress took no further action on video copyright issues, letting the existing legislation and the Betamax decision stand. Despite Valenti's doom and gloom predictions, the VCR ended up becoming a major revenue stream for the very studios that had tried to kill it; by 1986, revenues from video sales overtook box office revenues for the first time, beginning a trend that has continued to the present day. Unfortunately for Sony, by the time the Betamax decision was issued, the Betamax format was on its last legs. By 1985, Betamax had been reduced to 5% of the VCR market, and by 1988, Sony declared that it would begin manufacturing VHS products, essentially declaring defeat in the video format war. (Wielage) The Betamax case, as the first test of the fair use provisions in the new Copyright Act, was extremely influential, existing as one of the primary copyright cases on the books until Congress passed the Digital Millennium Copyright Act in 1998. Betamax has proven less resilient in the DMCA paradigm, as seen first in A&M Records v. Napster, where the Ninth Circuit rejected a fair use defense based on the Betamax precedent, and most significantly in MGM Studios v. Grokster, where the Supreme Court rejected a "substantial noninfringing uses" argument in favor of a new theory of "inducement," under which Grokster could be liable for the infringing acts of its users because it had intended for its product to be used to infringe. In the end, the Court avoided ruling on the Betamax case in the Grokster decision, thus while it technically remains valid, it remains to be seen what its role will be post-Grokster. And of course, time shifting, particularly in the broad sense mentioned by Morita in his quote at the beginning of this paper, is more than ever a part of our lives and an underlying concept behind much of the technology which drives our society.
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1 Interestingly, one of the original uses of Quad video by broadcasters was to "time shift" (though there is no indication that they used this phrase) their programming for West Coast airings, replacing the more cost- and time-intensive practice of using film kinescopes.
2 Interestingly, Blackmun was actually the deciding vote in the Court's decision to grant certiorari to the Betamax case, as he was hoping to use the case as a platform for affirming the Ninth Circuit's decision. (Bond 432)